ENDA has been introduced in every Congress since 1994 except the 109th. Similar legislation has been introduced without passage since 1974.[1] The bill gained its best chance at passing after the Democratic Party gained the majority after twelve years of Republican majorities in the 2006 midterm elections. In 2007, gender identity protections were added to the legislation for the first time. Some sponsors believed that even with a Democratic majority, ENDA did not have enough votes to pass the House of Representatives with transgender inclusion and dropped it from the bill, which passed the House and then died in the Senate. President George W. Bush threatened to veto the measure. LGBT advocacy organizations and the LGBT community were divided over support of the modified bill.

In 2009, following Democratic gains in the 2008 elections, and after the divisiveness of the 2007 debate, Rep. Barney Frank introduced a transgender-inclusive version of ENDA. He introduced it again in 2011, and Sen. Jeff Merkley introduced it in the Senate. On November 7, 2013, Merkley's bill passed the Senate with bipartisan support by a vote of 64–32. President Barack Obama supported the bill's passage.

Evidence of employment discrimination on the basis of sexual orientation and gender identity[edit]

In states that have anti-discrimination policies in place, LGBT complaints are equivalent to the number of complaints filed based on sex and fewer than the number of complaints filed based on race.[2][3][4]

The Williams Institute estimates the number of LGBT employees as follows: 7 million private sector employees, 1 million state and local employees, and 200,000 employees of the federal government. Thirty percent of state and local LGBT employees live in California and New York. In comparison, less than half of one half of one percent of LGBT state and local employees live in Montana, North Dakota and Wyoming combined.[5] As one might expect, many of the documented complaints of discrimination by state and local governments against LGBT employees are in California and New York. Surveys that seek to document discrimination on the basis of perceived sexual orientation and/or gender identity are often conducted with a pool of self identified LGBT people, making it difficult to ascertain the impact of this type of discrimination on non-LGBT individuals.

One source of evidence for hiring discrimination against openly gay men comes from a field experiment that sent two fictitious but realistic resumes to roughly 1,700 entry-level job openings. The two resumes were very similar in terms of the applicant's qualifications, but one resume for each opening mentioned that the applicant had been part of a gay organization in college. The results showed that applicants without the gay signal had an 11.5 percent chance of being called for an interview; openly gay applicants had only a 7.2 percent chance. The callback gap varied widely according to the location of the job. Most of the overall gap detected in the study was driven by the Southern and Midwestern states in the sample – Texas, Florida, and Ohio. The Western and Northeastern states in the sample (California, Nevada, Pennsylvania, and New York) had only small and statistically insignificant callback gaps.[6]

Transgender people may experience higher rates of discrimination than the LGBT population. A survey of transgender and gender non-conforming people conducted by the National Center for Transgender Equality found 90 percent of respondents experienced harassment, mistreatment, or discrimination on the job or took actions like hiding who they are to avoid it.[7] In comparison, a review of studies conducted by the Williams Institute in 2007 found that transgender people experienced employment discrimination at a rate 15 to 57 percent.[8]

In a survey conducted by Harris Interactive, 38 percent of LGBT people report incomes less than $35,000, compared to 33 percent of all U.S. adults over age 18.[9]

The current version of the bill under consideration in Congress prohibits private employers with more than 15 employees from discriminating on the basis of sexual orientation or gender identity. Religious organizations are provided an exception, broader than that found in the Civil Rights Act of 1964.[10] Non-profit membership-only clubs, except labor unions, are similarly exempt.

All versions of the bill, irrespective of the military's changing policies with respect to service by open gays and lesbians, have provided an exclusion for the military as an employer of members of the armed forces, though not as an employer of civilians.[11]

Since the 111th Congress, the legislation has included language to prevent any reading of the law as a modification of the federal definition of marriage established in the Defense of Marriage Act (1995).[12] Since the 110th Congress, a related provision aimed at non-marital legal relations like civil unions and domestic partnerships prevents requiring an employer to treat unmarried and married couples similarly.[13]

In the early 1990s, supporters of the legislation decided to focus on employment. Rep. Gerry Studds introduced the Employment Non-Discrimination Act on June 23, 1994.[17] The legislation failed in 1994 and 1995.[18] In 1996, the bill failed on a 49–50 vote in the Senate and was not voted on in the House.[19][20] Its level of support in the Senate may have represented an attempt by some to compensate for their recent support of the Defense of Marriage Act (DOMA), which prohibited the federal government from recognizing same-sex marriages.[citation needed] These early versions of ENDA did not include provisions to protect transgender people from discrimination[21] and ENDA was not introduced in the 109th Congress.

House vote on Sexual Orientation Employment Nondiscrimination Act of 2007 by congressional district.[22]

Democratic aye

Republican aye

Abstention or no representative seated

Democratic no

Republican no

In the 110th United States Congress there were two versions of the bill, both of which provided employment protections similar to Title VII of the Civil Rights Act of 1964.[23] Reps. Barney Frank, Chris Shays, Tammy Baldwin, and Deborah Pryce introduced H.R. 2015 on April 24, 2007. It included gender identity within its protections. It defined gender identity as "gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth." It allowed employers to require adherence "to the same dress or grooming standards for the gender to which the employee has transitioned or is transitioning."[24]

When that bill died in committee, Frank introduced H.R. 3685 on September 27, 2007, which did not include gender identity and contained exemptions concerning employer dress codes. It was endorsed by the Education and Labor Committee on October 18 and the House of Representatives passed it on November 7, 2007, by a vote of 235 to 184, with 14 members not voting.[25] Frank introduced a separate piece of legislation to prohibit discrimination in employment on the basis of gender identity.[26]

Some LGBT activist organizations refused to support H.R. 3685 because of its failure to cover gender identity.[27][28] An exception was the Human Rights Campaign, which received wide criticism from the LGBT community for supporting a non-inclusive ENDA.[29] The LGBT activist organizations that refused to support H.R. 3685 argued that not including transgender people undermined the underlying principle of ENDA.[30] They claimed that failure to include gender identity/expression weakened the protection for the portion of the LGBT population that most needed its protections: gender non-conforming people, who they claimed are discriminated against in greater numbers than their gender-conforming compatriots.[citation needed] Others argued that this was ENDA's best chance of passing Congress in thirty years, that civil rights victories have historically been incremental, that concerns about the legislation's protections were unfounded, and that forgoing a chance to provide immediate workplace protections to millions of lesbians, gays and bisexuals was politically and morally wrong.[31]

After rejecting by a vote of 43–55 an amendment by Senator Toomey to expand the religious exemptions[53] and accepting by unanimous voice vote an amendment by Senator Portman to prevent government retaliation against religious institutions,[54] the Senate approved ENDA on November 7, 2013, on a 64–32 vote.[44][55] Arizona Republicans Jeff Flake and John McCain unexpectedly[53] joined Sen. Murkowski and the seven Republicans who had supported three days earlier. Both independents and 52 of 53 Democrats again supported the measure, with McCaskill present but Pennsylvania Senator Bob Casey, who supported the bill's passage,[56] absent.

In the House, on September 17, 2014, Representative Polis filed a discharge petition, that, if signed by a majority of the House membership, would force a vote on the version of ENDA with a narrow religious exemption.[57] By September 22, it had been endorsed by 190 of the 218 that constitute a majority.[58] On December 3, 2014 6 of the 8 Republican co-sponsors asked House Speaker John Boehner to allow a vote on the legislation "as part of any available legislative vehicle including the National Defense Authorization Act" before the end of the 113th Congress.[59] Later that day, the House Rules Committee voted 7 to 3 against adding ENDA as an amendment to the 2015 defense authorization bill.[60]

From the 114th Congress onwards, efforts to pass non-discrimination legislation has focused on the broader Equality Act which focuses on additional protections including in housing and the jury system as well as employment.

Political proponents of the law intend it to address cases where gay, lesbian, bisexual, and transgender employees have been discriminated against by their employers because of their sexual orientation or gender identity. Currently, these employees are unable to find protection in the courts because sexual orientation is not considered to be a suspect class by the federal courts and by many U.S. states. Proponents argue that such a law is appropriate in light of the United States Constitution's guarantees of equal protection and due process to all. Advocates argue that homosexuality is not a "choice" but a personal identity, a claim supported by the American Psychology Association (APA), and that all working people have a right to be judged by the quality of their work performance and not by completely unrelated factors.[61] According to a study published in 2001 by the Williams Institute at the UCLA School of Law, reports of discrimination based on sexual orientation are roughly equal to those on race or gender.[62] The APA also states that there is significant discrimination against homosexuals in the workforce.[61]

The Congressional Budget Office in 2002 estimated that the Equal Employment Opportunity Commission's complaint caseload would rise by 5 to 7% as a result of the proposed law.[63] Assessments of the impact of comparable state policies also show a minimal impact on caseload.[64] Regarding constitutionality, the act incorporates language similar to that of Title VII of the Civil Rights Act of 1964,[23] which has consistently been upheld by the courts.

In 1994, Barry Goldwater, a hero among the conservative and libertarian movements, became honorary chairman of a drive to pass a federal law preventing job discrimination on the basis of sexual orientation.[65]

Ed Vitagliano, director of research for the American Family Association (AFA), expressed concern about the impact of anti-discrimination laws on religious organizations. He cited a lack of clarity around whether the narrow exemption would apply to support staff and lay employees in addition to churches and clergy.[66]

The Traditional Values Coalition (TVC) has claimed that the legislation would have a negative impact on school children by eliminating schools' ability to avoid hiring transgender teachers. It said that "If ENDA passes, students and children in daycare centers all across the nation will be subjected to individuals experimenting with their gender identities."[67]

The United States Conference of Catholic Bishops said ENDA goes beyond prohibiting unjust discrimination and poses several problems. It notes, for example, that the bill: (1) lacks an exception for a "bona fide occupational qualification," which exists for every other category of discrimination under Title VII of the Civil Rights Act, except for race; (2) lacks a distinction between homosexual inclination and conduct, thus affirming and protecting extramarital sexual conduct; (3) supports the redefinition of marriage, as state-level laws like ENDA have been invoked in state court decisions finding marriage discriminatory or irrational; (4) rejects the biological basis of gender by defining "gender identity" as something people may choose at variance with their biological sex; and (5) threatens religious liberty by punishing as discrimination the religious or moral disapproval of same-sex sexual conduct, while protecting only some religious employers.[69]

From the 114th Congress onwards, efforts to pass non-discrimination legislation has focused on the broader Equality Act which focuses on additional protections including in housing and the jury system as well as employment.

^103rd Congress: "For purposes of this Act, the term 'employment or employment opportunities' does not apply to the relationship between the United States and members of the Armed Forces."; 112th Congress: "In this Act, the term 'employment' does not apply to the relationship between the United States and members of the Armed Forces."

^111th and 112th Congresses: "In this Act, the term 'married' refers to marriage as such term is defined in section 7 of title 1, United States Code (commonly known as the 'Defense of Marriage Act')."

^112th Congress: "Nothing in this Act shall be construed to require a covered entity to treat an unmarried couple in the same manner as the covered entity treats a married couple for purposes of employee benefits."